Can Indian Courts grant Anti-Arbitration Injunctions against foreign seated Arbitration?: Discusses Calcutta HC

On 12th August 2020, the High Court of Calcutta observed that the power to India civil courts to not grant anti-arbitration injunctions against a foreign seated arbitration should be used with abundant caution and sparingly .

While delivering the judgement, Justice B. Shekhar Saraf stated that “it is only under the circumstances enumerated in and exhaustively discussed in paragraph 24 of 2003 Supreme Court ruling in the Modi Entertainment Network case, which would merit the grant of an anti-arbitration injunction and therefore, its rare and controlled usage.”

The court must be satisfied in the aspects:

1.Against whom the injunction is sought, the defendant must be amenable to the personal jurisdiction of the court.

2.The injustice will be perpetuated and the justice will be defeated if the injunction is declined.

3.The principle of the comity – respect for the court in which the commencement or continuance of the action/ proceeding is sought to be restrained- must be borne in mind.

  1. In exercising discretion to grant an anti-suit injunction.
  2. It will be examined by the court as to which is the appropriate forum in the case where there is more than one forum available having regard to the convenience of the parties and may grant anti-suit injunction.

6.The injunction should be grant in regard to proceedings that are oppressive or in a forum non-convinces.

7.Where on the basis of the jurisdiction clause in a contract the jurisdiction off the court is invoked therein the recitals in regard to the exclusive and non-exclusive jurisdiction of the court of choice of parties are not determinative but are relevant factors.

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